Edited by Bartram S. Brown
Chapter 13: Defences in international criminal law
Kai Ambos* INTRODUCTION With the establishment of the International Criminal Court (ICC),1 the first comprehensive codification of international criminal law (ICL) was achieved. The strong support of the ICC by civil society, academic institutions and more than a hundred states has quickly turned the ICC Statute and its complementary norms into the fundamental reference points of modern ICL. As to ‘defences’, however, the Statute is silent; it does not even mention this term. The drafters consciously avoided certain ‘catch words’ too closely associated with either the common law or the civil law system. They wanted to make sure the Statute would be truly universal and would not be interpreted by way of recourse to a specific type of national systems.2 Article 313 of the ICC Statute contains explicit rules regarding ‘grounds for excluding criminal responsibility’ distinguishing between mental disease or defect, intoxication, self-defence and duress/necessity.4 This list is not exhaustive. Pursuant to article 31(3), the Court may consider others grounds for excluding individual criminal responsibility. The Statute sets out some of these explicitly5 such as mistake of fact and mistake of law (article 32) and superior orders (article 33). Additional grounds for excluding criminal responsibility may arise from any source of law as referred to in article 21 of the ICC Statute, especially from customary * I am grateful to my senior research assistant Dr. Stefanie Bock and student research assistant Moritz Eckhardt for invaluable assistance in preparing this chapter. 1 Rome Statute of the International Criminal Court, 17...
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